Unemployment Insurance Handbook for Employers (UCB-201-P)
Section 3 - Appeals

PART 1B - Appeal Tribunal Hearings -
Tax or Status Cases


B. Tax or Status Cases

1. Introduction

These cases involve an employer’s or individual’s tax liability or responsibility. They may control what payroll and employees you must include in your quarterly contribution/wage reports. The department is a party to these proceedings.



2. Appeals

Right to appeal

The department will mail the interested parties a determination. If you disagree with the determination, you have the right to appeal by making a written request for a hearing.

Filing an appeal

An appeal must be in writing. To appeal, you must write to the department stating that you are appealing the determination. Attach a copy of the determination and include dates and times when you, your witnesses, and representatives, if any, are unavailable for a hearing. The department will attempt to schedule around unavailable dates and times, though this is not guaranteed. Indicate any special needs such as an interpreter or other accommodations needed due to disability. You, your agent, or your attorney should sign the appeal.

The appeal should be mailed, faxed, or delivered during office hours to the Appellate Section, Division of Unemployment Insurance, 201 East Washington Avenue, Room C300, P.O. Box 7942, Madison, WI 53707-7942. Fax: 608-267-1400

The business appealing the determination is called the appellant. The department is called the respondent.

Deadline to appeal

The appeal must be postmarked or received within 21 days of the date on which the determination was issued. The deadline is printed on the determination.

Late appeals

An appeal that is received or postmarked after the deadline specified on the determination is considered a late appeal. If an Administrative Law Judge, or ALJ, determines that the appellant’s reasons for filing late, when construed most favorably to the appellant, do not constitute a reason beyond the appellant’s control, the ALJ may dismiss the appeal without a hearing and issue a decision accordingly. The determination will remain the final disposition of the case.

If the ALJ does not dismiss the appeal, the hearing office will schedule a hearing to take testimony about why the appeal was late. The ALJ will determine if the appeal was late for a reason beyond the appellant's control. Work or personal obligations, being out of town, or misreading or misunderstanding the determination generally are not considered to be reasons beyond an appellant's control and the ALJ will dismiss the appeal. The determination will remain the final disposition of the case.

If the appellant proves that the reason for the late appeal was beyond his/her/its control, the ALJ will proceed to the merits of the case or order that a later hearing be scheduled on the merits of the case.

Withdrawals of appeal

The appellant may withdraw the appeal at any time before an appeal tribunal decision is issued on the merits. A withdrawal may be by telephone or in writing to the Madison hearing office or, if the Hearing Notice has been sent, to the hearing office or the department attorney listed on the Hearing Notice.

If an appeal is withdrawn, no hearing will be held unless another business is involved in the matter, the other party has also filed an appeal, and that party has not withdrawn its appeal. In that case, the issue appealed by that other party will remain the subject of a hearing and an appeal tribunal decision. If all appeals are withdrawn, the determination will remain in effect and become final without further appeal rights.

A party who wants to ensure that there will be a hearing in a case is advised to file his/her/its own appeal, even if another party has also filed one.

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3. Scheduling Conflict and Notice of Hearing

Scheduling conflicts

As mentioned above, when you file an appeal, include any scheduling conflicts in your appeal letter. Include dates and times when you, your witnesses, and representatives, if any, are unavailable for a hearing.

Do not wait until the hearing notice is received to notify the hearing office of scheduling conflicts. Also, keep in mind that parties are expected to make the necessary arrangements to attend the hearing, including taking time off from work or school.

Once the hearing has been scheduled, postponements are granted only for exceptional circumstances. A postponement must be requested as soon as the need for the postponement becomes known. Exceptional circumstances do NOT include the retention of an attorney, accountant or other representative immediately prior to the scheduled hearing date.

Notice of Hearing

All hearings are scheduled by the Madison Hearing Office and held by one of the four regional UI hearing offices. The hearing office addresses and telephone numbers may be found in Appendix A.

The hearing office mails parties a Hearing Notice at least 6 days in advance of the scheduled hearing. This notice contains important information you will need to know about the scheduled hearing, including:

To see sample hearing notices, see Appendix B.

PLEASE READ BOTH SIDES OF THE HEARING NOTICE CAREFULLY. Make sure that you understand the specified issue(s) and prepare your case with the issue(s) in mind.

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4. Telephone Hearings

Decision made by hearing office

A telephone hearing is one in which one or more parties appear by telephone.

Telephone hearings are not typically scheduled in tax cases because of the complexity of the cases and the number of exhibits usually involved.

The parties may request telephone participation, but the hearing office makes the final decision. To request a telephone hearing, the appellant should ask for one in the appeal. This will give the department advance notice to consider scheduling your hearing at a location with telephone connections.

Other information

If the hearing office grants a telephone hearing, the ALJ will call the telephone participants at the scheduled time. Telephone participants must provide a correct phone number in advance. The ALJ may conduct the hearing without a party or dismiss an appeal by a party who fails to provide a number or is unavailable when called.

Other considerations:

The hearing office may send copies of relevant documents in the hearing file to the parties before scheduling the phone hearing. If you want to submit other evidence, send it to the hearing office and to the other hearing participants in time for everyone to receive copies before the hearing. The ALJ may refuse to consider evidence that you did not send to all participants before the hearing.

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5. Preparing for the Hearing

General information

All appeal levels above the hearing level use the record from the hearing (testimony and documents admitted) to make their decisions. As a result, it is important to bring and present all relevant information at the hearing. Because you may get only a few days’ notice that your hearing has been scheduled, it is very important to begin preparing the case right away.

If you have questions about the issue(s) before the hearing, contact the hearing office listed on the hearing notice.

Representation

A party may choose to have an attorney or other representative assist at the hearing. If a party plans to have an attorney or representative at the hearing, the party must notify the hearing office as soon as possible of the name, address, and telephone number of the attorney or other representative. Include dates that the attorney or representative is unavailable for a hearing.

Preparing your case

Prior to the hearing, it is helpful to prepare notes of the facts involved in the case for reference during the hearing. Because notes are used only to refresh the memory of the note taker, individuals should not expect to read aloud from them as testimony, nor is it likely that any of these hearing preparation notes will be marked as exhibits by the ALJ. Each party should also write down questions for the other party and important points he or she wishes to make to the ALJ.

A party may review his/her/its UI Division file at the hearing office listed on the hearing notice. To make sure the file is available, please call the office in advance. A party may also receive a copy of the file through the mail. Please call the hearing office to request a copy.

Witnesses

Witnesses should consist of individuals who have actual personal knowledge of and were present to see and hear the events or facts to which they are testifying. An affidavit or written statement (even if notarized) cannot substitute for the personal appearance of a witness. Such a document is hearsay. The witness must appear for the hearing, testify under oath, and answer questions from the ALJ and the other party. Witnesses may include department auditors or other UI Division staff.

The ALJ cannot decide an issue solely on hearsay evidence, that is, evidence not within a witness’s own personal knowledge.

Example: If you want to present evidence that a worker you believe to be an independent contractor has applied for a federal employer identification number (FEIN), you need the worker who filed the application or an eyewitness to testify. Both the worker who filed the application and the eyewitness have direct, firsthand knowledge of what happened (“I took the application to the IRS office,” and “I went with Joe to the IRS office and saw him give them the application.” Either one can provide direct testimony that the IRS received the FEIN application. An example of hearsay or secondhand knowledge would be if a witness testified that "Joe told me that he filed the application.”).

Example: If your case involves the question of whether six workers are “employees,” bring witnesses who have firsthand knowledge about your business relationship with each worker or the business setup of each worker. It is not enough to bring one of the workers and then testify that the rest of the workers are in the same situation.

The ALJ will limit, or exclude, repetitious testimony. If several people witnessed a particular incident, you do not have to bring them all. Choose one or two with the best information. However, be sure to bring sufficient witnesses to testify about each important part of your case.

The ALJ will not permit testimony from a witness that is not relevant or material to the issue(s) involved in the case. Relevant evidence is evidence that tends to make any important fact more probable than without the evidence.

If a witness seems reluctant to appear at the hearing voluntarily or if you wish to obtain specified documents, you may ask the hearing office to prepare a subpoena form for you. An attorney representing you may also issue a subpoena. A subpoena requires the witness to appear at the hearing or requires presentation of the requested documents at the hearing. You are responsible for serving the subpoena before the hearing and for providing the required witness fee and mileage payment to the witness. The hearing office will provide further information about serving the subpoena when giving you the form.

Exhibits

A party may wish to introduce documents or other materials such as contracts or financial records, photographs, video or audio tapes, charts, objects, sample products, etc., to support a case. However, the ALJ may refuse to accept irrelevant evidence, that is, evidence that does not make an important fact more probable than without the evidence.

Photocopies may be submitted, but the original documents should be brought to the hearing to confirm the authenticity of the photocopies. Generally, the person responsible for creating or keeping the records should be present at the hearing to identify, authenticate, and testify about them.

If a video or audio recording is important to prove your case, you must supply the equipment to play the recorded material at the hearing and submit the recording(s) as part of the record while the appeal is pending (after which it/they may be returned to you). Notify the hearing office prior to the hearing that you plan to play a video or audio recording at the hearing, so that additional time for the hearing may be provided.

Prior LIRC and court decisions

The LIRC website, http://dwd.wisconsin.gov/lirc, contains a digest, by topic, of recent LIRC decisions and court decisions. These decisions can be quite helpful, but keep in mind that each case will be decided on its own unique set of facts.

Settlements and compromises

Under very limited circumstances, the department may settle a pending case or compromise on the amount your business (or you individually) owe in taxes (or reimbursements, if you are a reimbursable employer), interest, penalties, and costs. Administrative rule DWD 113 discusses such agreements. A copy of this administrative rule may be obtained at most public libraries, at the Legislature’s web page, http://docs.legis.wisconsin.gov/code/admin_code/dwd/100_150/113 , or by contacting the UI Bureau of Legal Affairs at 608-266-3189.

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6. Pre-hearing Conferences

ALJs may schedule prehearing conferences pursuant to DWD 140.07. However, such conferences are scheduled in only the most complex cases. Following the conference, the ALJ will issue an order about such matters as stipulations of fact (both sides agreeing that certain facts are true), limitations on the number of witnesses, stipulations about evidentiary issues, and any other matters that might assist in the disposition of the appeal. A copy of this administrative rule may be obtained at most public libraries, at the Legislature’s web page, http://docs.legis.wisconsin.gov/code/admin_code/dwd/100_150/140, or by contacting the UI Bureau of Legal Affairs at 608-266-3189.

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7. The Hearing

Introduction

Having a hearing is like “starting from scratch,” as if the determination was never made. Parties present their cases before an Administrative Law Judge, or ALJ, who is an attorney. The ALJ conducts the hearing and makes sure that both you and the department have the opportunity to present evidence and give testimony. The ALJ is responsible for controlling the hearing, making sure that the rules of evidence are followed, and protecting the due process rights of the parties.

The department will be represented by an attorney. However, the department's attorney has nothing to do with scheduling hearings, postponements, or other changes once the hearing has been scheduled.

Although the hearing is not a court trial, it is a formal proceeding. Hearings are open to the public, though it is very unusual for a person unrelated to your case to attend. To obtain a copy of the digital recording of your hearing, please call 608-266-3174. Be sure you let the person you contact know that you are interested in a tax hearing. There is a $7.00 fee per compact disc.

Accessibility

Most of the hearing locations throughout the state are accessible to persons with physical disabilities. If certain accommodations are necessary to meet your physical needs, you should contact the hearing office immediately so that the appropriate arrangements can be made.

If you need an interpreter to properly participate in the hearing or present your case, you should immediately contact the hearing office. Interpreters for numerous languages are available, but the hearing office requires advance notice and will provide additional time for the hearing.

Persons who are deaf, hard of hearing, or speech-impaired and who use a TTY (text telephone) or PC (personal computer) to communicate can contact the hearing office by first calling the WI TRS (Wisconsin Telecommunications Relay System) at 1-800-947-3529.

Attending the hearing

In tax, or status, cases it is very important for you attend the hearing. These cases require detailed knowledge about your business that probably only you can provide.

You must report in person if you are scheduled to appear in person. If you are scheduled to appear by telephone, you must be available at the telephone number you provide to the hearing office. If you have been scheduled to appear by telephone but decide to appear in person, make sure that you notify the hearing office in advance of the hearing. Follow the instructions on your hearing notice.

Hearing procedure

A record is made of the hearing by digital recording. As such, it is important to speak loudly and clearly, not to rustle papers, and not to interrupt, argue or talk at the same time as someone else.

While the ALJ will follow administrative procedural rules on burden of proof and cross-examination, and will limit the use of hearsay evidence, statutory and common law rules of evidence are not controlling.

The ALJ will introduce himself or herself, identify the persons in the hearing room, explain the procedures, summarize the determination issued by the department, define the issue(s) involved in the case, and ask both parties for brief statements about their contentions. The brief statement is not intended to include all the details of your case. Rather, it should provide a quick description of what you are claiming. An example would be: “I believe Paul Smith and Phil Jones are independent contractors and not employees.”

The ALJ will determine the order in which the parties and any witnesses testify, swear them in, and question them. The ALJ is responsible for getting all the information necessary to understand the facts of your case and to obtain a sufficient record of testimony and other evidence presented in order to make a decision.

The ALJ may exclude witnesses (that is, order witnesses to remain outside the hearing room) so that the witnesses are not influenced by the testimony of others. Similarly, the ALJ may limit or exclude the testimony of witnesses if the testimony is repetitive, irrelevant, immaterial, or based solely on hearsay.

In addition to presenting his/her/its own testimony, a party will be given a chance to ask questions of the other party and his/her/its witnesses (called cross-examination). Cross-examining a witness involves asking questions about that person's testimony or asking him or her to provide additional information important to your case. It may be helpful to bring a pen and paper to take notes during the testimony.

Cross examination does not involve providing your own testimony (you will get your own chance to do that). For example: Joe Smith testifies that you paid him $500 on March 21. You can ask questions about that, such as: “Did I pay you by check?”, but you cannot interrupt or argue with him or rebut what he said, such as: “But part of that was repaying a loan!”

You (or your representative) may object to certain questions or to the admission of certain evidence. Before ruling on the objection, the ALJ may ask the other party to respond to the objection.

After both parties have had the chance to present their cases and question the other party’s witnesses, the ALJ will end the hearing.

Burden of proof

The party with the burden of proof, that is, the party who has the duty of affirmatively proving its case, depends on the issue or issues involved at the hearing.

For example, there is a presumption that a worker is an employee, not an independent contractor, unless the business proves to the department that the worker is not an employee. Therefore, it is the employer's burden to prove that the worker is not an employee.

The vast majority of cases involve proof by a preponderance of the evidence. This means that whoever has the burden of proof must show that it is more probable than not that the claim that the party is making is true. For example, if you are trying to prove that certain wages should not be counted as wages for tax purposes because they were paid for agricultural labor, you must convince the ALJ that it is more probable than not that the work performed was agricultural labor.

Failure to appear at the hearing

If the appellant (the employer or business) does not attend the hearing, then the appeal is dismissed. The determination remains in effect and becomes final (unless good cause for failing to appear is shown). The ALJ will wait 15 minutes before dismissing the appeal.

If the respondent, the department, does not attend the hearing, it gives up the chance to present evidence and testimony at the hearing (unless good cause for failing to appear is shown). The ALJ will wait five minutes before proceeding with the hearing without the respondent.

If a party fails to appear for a hearing but believes there was good cause for failing to appear, he/she/it may provide a written explanation of the reasons for not appearing. A party may submit the written explanation to the hearing office at any time before a decision is issued or within the 21-day appeal period after a decision is mailed. The ALJ will decide whether to schedule a hearing on the nonappearance issue only, or whether to schedule a hearing on the non-appearance issue and conditionally on the merits of the case.

A person’s illness, an accident, or unexpected circumstances that would prevent a person from being able to attend a hearing may be good cause. Forgetting about the hearing, writing the wrong date on your calendar, getting lost, or getting stuck in traffic generally are not considered to be good cause.

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8. After the Hearing

Appeal tribunal decision

After the hearing, the ALJ will review the testimony and the exhibits received at the hearing, decide how the unemployment insurance law applies to the facts, and issue a written decision. The ALJ's decision, also called an Appeal Tribunal Decision or ATD, will be based solely on the evidence presented at the hearing. The ALJ’s decision can change the ruling made in the determination.

A copy of the ALJ's decision will be mailed to you or your representative. If you haven’t received a decision within 90 days, please contact the hearing office. This is important because, if the mail was misdirected, you could miss the deadline to appeal the ALJ’s decision.

Parties are sometimes confused when they get a decision because it looks like the ALJ got the facts wrong. However, this may occur because the parties presented two different versions of events (that is, contradictory evidence) at the hearing. Deciding which version of the facts is more credible can prove difficult. The ALJ does his/her best to determine credibility and make the appropriate findings of fact.

REMINDER: A decision in a tax, or status, case does not decide a claimant’s benefit eligibility.

Example: A tax, or status, decision is issued stating that a claimant was an employee and not an independent contractor. That decision will not automatically decide that issue for the claimant’s benefit eligibility. The issue involved in the benefit case is not whether you are liable for UI taxes; it is whether the claimant is eligible for benefits.

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9. Further Appeals

The decision of the ALJ may be appealed to the Labor and Industry Review Commission (LIRC), and LIRC's decision may be appealed to the courts. For detailed information on these further appeals, see Parts 2 and 3.

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10. Precedence in Tax Cases

In tax cases, when LIRC interprets a statute differently than the department, LIRC’s interpretation generally must be followed by the department from then on. The department is considered to have “acquiesced” in (accepted and adopted) LIRC’s interpretation. However, the department may decide not to appeal LIRC’s decision but also to "non-acquiesce” in the decision. To do this, the department will send a notice of no acquiescence to be published in the Wisconsin Administrative Register. (A copy will also be sent to you and to LIRC, if the department takes this action.) The effect of this is that while LIRC’s interpretation and decision is binding in that particular case, the department is not required to follow that interpretation in any other cases.


Updated: December 15, 2008